Banana Republic: One System of Justice for the Powerful (Like Clinton) … and Another For Everyone Else

FBI Director Comey’s announcement that he doesn’t think Hillary Clinton should be prosecuted for sharing government documents on her private, unsecured email server is very troubling …

The FBI Re-Wrote 6 Criminal Laws to Let Clinton Off the Hook

Former FBI director Chris Swecker said Comey should have brought charges against Clinton:

He seemed to be building a case for that and he laid out what I thought were the elements under the gross negligence aspect of it, so I was very surprised at the end when he said that there was a recommendation of no prosecution and also given the fact-based nature of this and the statement that no reasonable prosecutor would entertain prosecution, I don’t think that’s the standard.

In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence. I would point out, moreover, that there are other statutes that criminalize unlawfully removing and transmitting highly classified information with intent to harm the United States. Being not guilty (and, indeed, not even accused) of Offense B does not absolve a person of guilt on Offense A, which she has committed. It is a common tactic of defense lawyers in criminal trials to set up a straw-man for the jury: a crime the defendant has not committed. The idea is that by knocking down a crime the prosecution does not allege and cannot prove, the defense may confuse the jury into believing the defendant is not guilty of the crime charged. Judges generally do not allow such sleight-of-hand because innocence on an uncharged crime is irrelevant to the consideration of the crimes that actually have been charged. It seems to me that this is what the FBI has done today. It has told the public that because Mrs. Clinton did not have intent to harm the United States we should not prosecute her on a felony that does not require proof of intent to harm the United States. Meanwhile, although there may have been profound harm to national security caused by her grossly negligent mishandling of classified information, we’ve decided she shouldn’t be prosecuted for grossly negligent mishandling of classified information. I think highly of Jim Comey personally and professionally, but this makes no sense to me. Finally, I was especially unpersuaded by Director Comey’s claim that no reasonable prosecutor would bring a case based on the evidence uncovered by the FBI. To my mind, a reasonable prosecutor would ask: Why did Congress criminalize the mishandling of classified information through gross negligence? The answer, obviously, is to prevent harm to national security. So then the reasonable prosecutor asks: Was the statute clearly violated, and if yes, is it likely that Mrs. Clinton’s conduct caused harm to national security? If those two questions are answered in the affirmative, I believe many, if not most, reasonable prosecutors would feel obliged to bring the case.

Comey simply ignored — or rewrote — the plain language of § 793(f), which does not require any showing of criminal intent. There is a reason that Congress did not require a showing of intent in this provision of the Espionage Act: to protect against even inadvertent disclosure or risk of disclosure of protected information where the perpetrator demonstrated gross disregard for the national security. How Comey could conclude that “no reasonable prosecutor” could make this case is inexplicable in light of his own words. Even where the statutes prohibiting mishandling of classified information require intent, it is not exclusively intent to harm the national security (though that does play into some relevant statutes). Comey noted that his investigation looked at “a second statute, making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.” That statute is 18 U.S.C. §1924(a), which provides that any federal official who “becomes possessed of documents or materials containing classified information of the United States, [and] knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both [emphasis added].” Section 1924(a) does not require an intent to profit, to harm the United States, or otherwise to act in a manner disloyal to the United States. It only requires “intent to retain” classified documents at an unauthorized location, something Comey’s own comments suggest was the case here. Again, the case for prosecuting in light of these facts was more than simply fairly debatable it was quite strong.

I felt that the flame of “equal justice for all” in the US died today when Hillary is freed from prosecution having sent multiple, highly classified emails on a non-classified network, while [CIA whistleblower] Jeffery Sterling sits in jail having been prosecuted for contacting a reporter, and while [NSA whistleblowers] Ed Loomis, Bill Binney, Diane Roark, Tom Drake and I have our clearances suspended or revoked for simply blowing the whistle on non-Constitutional governmental activities, mismanagement, and widespread corruption.

John Kirakou – former CIA counterterrorism operations officer and former senior investigator for the Senate Foreign Relations Committee who blew the whistle on illegal torture by CIA officers, and was thrown in jail for it – points out:

In my very first hearing, my judge … said that she would not respect precedent from theTom Drake case, saying that a defendant in a national security case had to have criminal intent to be prosecuted for espionage. That begged the question of whether a defendant could then “accidentally” commit espionage. “That’s exactly what it means,” the judge said. I didn’t stand a chance.

But in Hillary Clinton’s case, it seems that everything rests on the notion of criminal intent. Did Hillary, then, set up her email server specifically to subvert the Freedom of Information Act (FOIA)? Did she set up her email server for the express purpose of passing classified information to people not entitled to receive it? … But that’s not the standard ….

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I don’t care whether or not she had criminal intent. My own trial judge says that it doesn’t matter. But if Hillary didn’t have criminal intent, and that’s the reason the Justice Department uses to not prosecute her, then Tom Drake and I, at the very least, deserve a pardon. Otherwise, the system really is as corrupt as so many Americans say it is.

She revealed the names of undercover CIA officers by using her unclassified and unprotected personal email server. That may be a violation both of the Espionage Act of 1917 and the Intelligence Identities Act of 1982 (IIPA).

Clinton’s Security Clearance Should Be Revoked …

Diane Roark – a former top staff member on the House Intelligence Committee – explained to Washington’s Blog why Clinton should be disqualified from serving as president:

Though nothing was found against any of us [high-level whistleblowers on mass surveillance by the NSA] after an investigation of over four years, and [Pulitzer prize-winning] reporter Risen even said publicly several times that he had not known any of us, our clearances were never returned. Obviously one cannot be POTUS without clearances, so Hillary should be disqualified on that ground alone. Though the President is the chief intel consumer, I would think agencies would withhold particularly sensitive items given her clear subordination of security to the goal of keeping her records private so she cannot be criticized and to enhance her political career.

NEVER BEFORE Has the FBI Publicized Its Recommendation

I’ve been involved in the criminal investigation for the FBI of Congressmen, Senators, and officials of every description …. I cannot ever remember any FBI director – or any FBI official – coming out with a referral and the substance of a recommendation. So that it in itself is highly, highly unusual.

Matthew Miller, who was a spokesman for the Department of Justice under Attorney General Eric Holder, called Comey’s press conference an “absolutely unprecedented, appalling, and a flagrant violation of Justice Department regulations.” He told The Intercept: “The thing that’s so damaging about this is that the Department of Justice is supposed to reach conclusions and put them in court filings. There’s a certain amount of due process there.”

Legal experts could not recall another time that the FBI had made its recommendation so publicly.

“It’s not unusual for the FBI to take a strong positions on whether charges should be brought in a case,” said University of Texas law professor Steve Vladeck. “The unusual part is publicizing it.”

The Rule of Law Is Dead In America

Comey’s decision reflects the utter hypocrisy of the justice system in matters of national security.

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If you are a whistleblower you can expect the entire weight of the US government to fall on your head. But if you are a well-connected political figure, or a friend of the president, you can violate the country’s espionage laws with impunity and know that you’ll get away with it.

The contrast between the copious evidence – some of it self-admitted – of Secretary Clinton’s demonstrable infractions, on the one hand, and the very sketchy, circumstantial evidence used to convict and imprison Jeffrey Sterling, on the other, lend weight to the suspicion that there is one law for the rich and powerful in the United States and another for the rest of us.

I think [Clinton] is vulnerable, but whether she enjoys what I call “elite immunity,” we don’t know …. For much lesser violations people have lost their jobs. But when you get to the higher ranks, it’s like another set of rules.

What happened here is glaringly obvious. It is the tawdry by-product of a criminal justice mentality in which – as I documented in my 2011 book With Liberty and Justice for Some – those who wield the greatest political and economic power are virtually exempt from the rule of law even when they commit the most egregious crimes, while only those who are powerless and marginalized are harshly punished, often for the most trivial transgressions.

Had someone who was obscure and unimportant and powerless done what Hillary Clinton did – recklessly and secretly install a shoddy home server and worked with Top Secret information on it, then outright lied to the public about it when they were caught – they would have been criminally charged long ago, with little fuss or objection. But Hillary Clinton is the opposite of unimportant. She’s the multi-millionaire former First Lady, Senator from New York, and Secretary of State, supported by virtually the entire political, financial and media establishment to be the next President, arguably the only person standing between Donald Trump and the White House.

Like the Wall Street tycoons whose systemic fraud triggered the 2008 global financial crisis, and like the military and political officials who instituted a worldwide regime of torture, Hillary Clinton is too important to be treated the same as everyone else under the law. “Felony charges appear to be reserved for people of the lowest ranks. Everyone else who does it either doesn’t get charged or gets charged with a misdemeanor,” Virginia defense attorney Edward MacMahon toldPolitico last year about secrecy prosecutions. Washington defense attorney Abbe Lowell has similarly denounced the “profound double standard” governing how the Obama DOJ prosecutes secrecy cases: “lower-level employees are prosecuted . . . because they are easy targets and lack the resources and political connections to fight back.”

The fact that Clinton is who she is undoubtedly what caused the FBI to accord her the massive benefit of the doubt when assessing her motives, when finding nothing that was – in the words of Comey – “clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”

But a system that accords treatment based on who someone is, rather than what they’ve done, is the opposite of one conducted under the rule of law.

With Comey indicating that over 100 emails analyzed by his agents contained some level of classified information, and with him further indicating that Clinton used her private servers in areas where “hostile actors” could have easily accessed her account, as a former prosecutor, I would think that a prosecution should be forthcoming; such would be the logical conclusion considering the facts that Clinton agreed not to break the law and that she broke the law either knowingly or negligently.

Comey’s comments constitute a form of legal sophistry in that prosecutors did not need to prove that Clinton intended to commit a criminal act. Comey and staunch Clinton apologists keep providing cover by adding that element — intent — that simply is not needed. Indeed, under federal and state laws, negligence roughly means an “indifference” or careless attitude toward the proscribed conduct and with Comey calling the conduct “extremely careless,” an argument can be made that Clinton was grossly negligent in her acts.

But the fact that no prosecution is pending this day is so not because Clinton was right or has been vindicated, but because the Washington elites in both major political parties protect their own. Generally, I am not prone to conspiracy theories, but I do not find it coincidental that last week, former President Bill Clinton just happened to force a meeting with Attorney General Loretta Lynch — in private — on an airport tarmac in Arizona only days before Lynch’s employee, James Comey, announces his recommendation that no charges should be pursued. Or that on the same day that Comey announces his decision, that his big boss — President Obama — just happens to be campaigning with Clinton in Charlotte, North Carolina.

But even if each of the above were coincidental, we cannot ignore that any other career Foreign Service officer or governmental official with security clearances would have been charged with a criminal offense, fired or both. Most would have faced arrest and indictment by federal agents and prosecutors, not a public press conference where the head of the FBI makes arguments usually proffered by defense counsel that has been retained at great expense by the accused. If for no other reason, this is disconcerting because the only thing that keeps our nation of laws intact is belief that no person is above the law. But since the two major parties’ presumptive candidates — Democrat Hillary Clinton and Republican Donald Trump — both have skeletons in their closets, ranging from public corruption to marital assault, and with neither ever having had to endure a peregrination through the justice system at any point in their adult lives, it becomes more obvious than ever that the rich and powerful seem to know instinctively that when accused of wrongdoing, absolutely nothing will come of it, no matter how serious the allegations.

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Presidents, presidents-to-be, JCS, NSA, CIA, FBI and various others have been whittling away at US law for a long time...not first beginning in late November of 1963--an infamous still-open case. I feel as long as that case is not "solved" and the legally chosen president vindicated, (i.e. citizens of the U.S. rise up in fury and reverse the coup) nothing can ever be "better" again.

None of you ZHers were worried about "the rule of law" when George W. Bush and The Big Dick Cheney were running things. Those two took a huge SHIT on the entire Constitution for eight years and you guys cheered those morons on. I guess what we really need here in the good old US of A is a one-party system…a conservative party of course. Lots of family values (if you happen to belong to the proper, Christian family), plenty of safety from all those scary foreigners (Mexicans, Muslims…hey, throw in a few Asians for good measure), plenty of war (yeah, let's spend even MORE on military, even though we already spend more than the rest of the planet combined)…man, the hypocrisy on this site piles up fast.

The FBI Director James Comey Trivia Quiz Which woman did Director Comey vigorously pursue in an investigation, and eventually send to jail?

(1)Hillary Rodham Clinton

(2)Martha Stewart

(3)Eve Ensler

A:Martha Stewart.While at the DoJ’s Criminal Division during the Bush Administration, Comey led the team which removed dangerous criminal, Martha Stewart, from the mean streets of New York.

Which woman compromised national security by ordering the disabling of State’s network security so that email traffic between her private email servers and the State Department could flow unimpeded, allowing access to Chinese military hackers (and the occasional Albanian hacker), who could then access State Department personnel records, and use State’s connection to the OP’s personnel records (which did indeed occur in this time frame) and compare the two to deduce which State personnel were actual CIA undercovers, or NOCs?

(1)Martha Stewart

(2)Hillary Rodham Clinton

(3)Lindy West

A:Hillary Rodham Clinton, while she was Secretary of the Department of State

Which individual sat on the board of directors of the National Chamber Litigation Center, the legal attack arm of the US Chamber of Commerce, responsible for all those anti-worker laws and legal actions?

(1)Sponge Bob

(2)Sergio Mendes

(3)James Comey, FBI director

A:James Comey, FBI director

Which individual clerked for Judge John Walker, Jr., member of the Bush-Walker family (George W. Bush, George H.W. Bush, Prescott Bush, etc.), and also the judge who decided in favor of a massive insurance payout to Larry Silverstein of Silverstein Properties, due to the terrorist destruction of the WTC Twin Towers on 9/11/01?(The very same John Walker who was the chief law enforcement officer at the Treasury Department during the poorly handled investigation of any links between the BCCI and the George H.W. Bush White House.)

(1)Buckethead

(2)Asa Akira

(3)James Comey, FBI director

A:James Comey, FBI director

Which individual worked at the prestigious law firm, Gibson, Dunn & Crutcher, responsible for successfully litigating in the cases of Bush v. Gore, Citizens United and various corporate assassins hired to murder union organizers in South America?

(1)Boney James

(2)Keiko Matsui

(3)James Comey, FBI director

A:James Comey, FBI director

Which individual was with the banker to the drug cartels, HSBC Holdings?

GW, as much as I love your posts, in this regard you are completely off base. The law is not dead, it is vibrant and humming along- working exactly as it supposed to.

The law has NEVER been administered in a fair, impartial manner. It has ALWAYS been used to benefit certain groups over others. This is the NATURE of law. Law is the pre-eminent means for enslavement, graft, bribery, murder and all kinds of criminal behavior which can then be adjudicated by select judges to provide pre-determined results.

The LAW has never functioned as it has been sold. All legal systems are corrupt and therefore of zero usefulness. Their abuses will always exceed any benefits they promise. If someone has an example to prove me wrong, please cite it.
Government is founded on law, please list a single good government. Slavery is based on law. Central banking is based on law. The police enforce the law- with extreme prejudice I might add. Taxes are based on law. Regulation is based on law. Need I go on?

Only the elimination of law can put humanity on the road to social progress.

Comey is a traitor to the United States. He and Benedict Arnold can roam hell together. He flushed any respect he had worked his whole career to build. With an appropriate delay he will announce his retirement and will slither off to a high paid position with a bank or wall street firm. He sold his soul and I hope he doesn't get a day of peace the rest of his wicked life.

“If you become President, will you tolerate from your Secretary of State the same methods of handling classified information that you used in that position? If your answer is no, and it happened, what corrective action would you take?”

What's more fucking amusing than a known perp / felon gets off on risking state secrets?

Get a piece of paper, electronic e-mail, it says classified, risky?

Nope the classified does not mean classified no more and quote the Clinton case in your defence as precedent.

So shooting oneself in the foot.

Forward all classified documents etc. to my mail server and I will see how much I can flog them for stating in big words "the Clinton Precedent".

Onto the election now the other half of this gambit.

As for Trump, all the votes mean nothing, Clinton "win" is what this unprosecution should tell you and I don't know one person that thinks Clinton should win. Americans really need to wake up to how the likes of Messina have weaponised the MSM to achieve goals. You will wake up after the election, Clinton won a narrow victory, you will even expect it by the conditioning but did she? Likely not.

For the BT Media guy - Of the 20,460 readers who took part in the poll, 16,271 said they would be voting to leave the EU in the referendum on June 23. - that was what you wrote not after the take town the revised number 2-3K people you were quoting. But hey BT did build the spy network in cahoots with GCHQ.

Gone now but the poll count was 20K, far bigger than the 1-2K of the other polls. Can you see the ballot box being stuffed with fraudulent votes now? 51% - 49% my ass, had to be within the margin of error on the mini polls and you came up a million votes short. Got the origional too starting to collect take downs and think others are starting to do the same now.

American people need to wake up and understand the methods it allows you to be turn it on those controlling the MSM.

People are finally waking up to the fact that we are slaves. That realization doesn't really change anything other than the fact that they can now bring it all out in the open. No more cloak and dagger, smoke and mirrors to try to keep the owned ignorant. It'll be so much easier for them to just DO what they will without having to worry so much about perception. The cat is out of the bag.

People, be merciful: guy has 5 kids, and if he knows that DOJ will eventually do nothing, would you think he would end his career or even life? He did investigation, gave info for all who wants to know, and let the people to decide do they want her or not by voting. The only problem: he does not guarantee that some friendly hackers would not help her to get her golden dream by altering election results.

I agree. I think people are too hard on this guy. We don't know what outside pressures he is facing. Also, some powerful people just get a pass. That's life and it sucks. It doesn't mean that karma doesn't affect them in other ways if they are guilty. I don't think God completely allows people to do bad things without some indirect consequences. In the bible, God says: "Vengeance is mine: I will repay." As Will Smith said, "Let God deal with the things they do, because hurt in your heart will consume you too."

People, be merciful: guy has 5 kids, and if he knows that DOJ will eventually do nothing, would you think he would end his career or even life? He did investigation, gave info for all who wants to know, and let the people to decide do they want her or not by voting. The only problem: he does not guarantee that some friendly hackers would not help her to get her golden dream by altering election results.

It is not about excuses, or in fact, about mercy: I don’t care. I stated the fact, and the fact is that he, as a part of a system, knows what he is facing. Would you demand someone to stop juggernaut by jumping before it? If so, we should start 300 Spartans club here or something else similarly optimistic.

By the way, thank you for noticing my first comment @ zero hedge. It is very encouraging.

I lost my sense of justice in the feral government when a memo from a Berkley law professor all of a sudden made torture legal... at least a lot more people are finally catching on to the rampant injustice after 14 years.

I lost my belief in US as a force for justice and/or as a democracy when I studied there (from 1999-2001). I quickly realized that US has no independent media, but only corporate propaganda (an informed populace is a prerequisite for democracy – in US people are purposely dumbed down. Also apparent on this site) and that bribing was legal – and an integrated part of the US elections/political system. Things have not improved.

Can't depend on the Great Unwashed uncle. Do not let the filth break your line is my motto (especially when you outnumber them 10/20-1 ) but i'm only one of a handful who used to get carted ta-ta bye-bye, away.

. . . and not being short of a few bob , the lack of fight, dampens your own lust for confrontation . . that said, if the sheeples grew a pair and said fuck it, with several ensuing deaths, i'm back in.

I don't know if the realization of power/immunity comes after an experience of getting away with breaking the law the first time or whether those who seek power are imbued with such delusional sociopathic arrogance of their righteousness that they believe they are beyond laws, but from the lowest ranking official in government to the highest, there is undeniably a systemic, overt habit of corruption.

She didn't just break an obscure rule on procedure, she broke critical laws that affect the safety and lives of people in the firing line of security. Yet this blind worship of the wealthy and powerful, excusing their mistakes and transgressions throughout history shows something fundamentally wrong with human beings in general. It is this Milgram-esque attitude of giving any prick with a cheap badge the authority to break common laws that govern any civilisation, this exemption from the consequences as they continually assault, steal and even murder their citizens, that make this world a nightmare without justice.

A position of authority, whether you're a TSA minion or a sitting senator must come with it the harshest penalties for betraying the public trust, prosecuted as often as possible to deter future criminals in power and reinvigorate these positions with new blood. Before that happens, we will always be sheep to the predators.

We like ancient Rome America has made the transition from Republic to Empire. Our government of elected representatives of the people are now ruled by elite families or aristocracy who made up the members of our elected bodies and special interest who buy their way to power sponsoring representatives in elections.

In America the current social, economic, and political discord is building and ends decades of relatively peaceful governance. We are now seeing the effect of growing animosity between the average citizen and our aristocracy. The political traditions of America have now been broken, self-interest has become rampant within the House and the Senate, and mob violence, political treachery, and murder have become the new tools of political life. Coupled with the social and economic turmoil that America now faces the country will be hard pressed to endure.

TPTB seem hell bent on ensuring Hillary becomes POTUS. Rumsfeld said, regarding 911 that something even bigger is coming. I can only imagine what the elitists have in store for the USSA.

1. Nuclear, unlikely because radiation lasts far too long unless the event takes place on the coast with an offshore wind.

2. Viral, big possibility here since the elite can hold the cure and already be innoculated against the strain themselves. Also most people would stay indoors to avoid infection allowing TPTB to enforce their curfew.

3. EMP pulse, blamed on Russia and or China for having wiped all the bank servers in America. What are people going to do when there is no money? Ask .gov for a handout. Coup accomplished.